It’s Trump vs. the Courts, and It Won’t End Well for Trump

 Opinion

Guest Essay

It’s Trump vs. the Courts, and It Won’t End Well for Trump

 

March 23, 2025, 7:00 a.m. ET

By J. Michael Luttig

Judge Luttig was appointed by President George H.W. Bush and served on the U.S. Court of Appeals for the Fourth Circuit from 1991 to 2006.

https://www.nytimes.com/2025/03/23/opinion/trump-judge-venezuela-deportation.html

 

President Trump has wasted no time in his second term in declaring war on the nation’s federal judiciary, the country’s legal profession and the rule of law. He has provoked a constitutional crisis with his stunning frontal assault on the third branch of government and the American system of justice. The casualty could well be the constitutional democracy Americans fought for in the Revolutionary War against the British monarchy 250 years ago.

 

Mr. Trump has yearned for this war against the federal judiciary and the rule of law since his first term in office. He promised to exact retribution against America’s justice system for what he has long mistakenly believed is the federal government’s partisan “weaponization” against him.

 

It’s no secret that he reserves special fury for the justice system because it oversaw his entirely legitimate prosecution for what the government charged were the crimes of attempting to overturn the 2020 presidential election and purloining classified documents from the White House, secreting them at Mar-a-Lago and obstructing the government’s efforts to reclaim them. He escaped the prosecutions by winning a second term, stopping them in their tracks.

 

But unless Mr. Trump immediately turns an about-face and beats a fast retreat, not only will he plunge the nation deeper into constitutional crisis, which he appears fully willing to do, he will also find himself increasingly hobbled even before his already vanishing political honeymoon is over.

 

The bill of particulars against Mr. Trump is long and foreboding. For years Mr. Trump has viciously attacked judges, threatened their safety, and recently he called for the impeachment of a federal judge who has ruled against his administration. He has issued patently unconstitutional orders targeting law firms and lawyers who represent clients he views as enemies. He has vowed to weaponize the Department of Justice against his political opponents. He has blithely ignored judicial orders that he is bound by the Constitution to follow and enforce.

 

There has been much talk in recent weeks of this constitutional crisis, in which the president has defied and stonewalled the federal judiciary as he has sought to consolidate his power. The Republicans who control Congress have already demonstrated their fealty to Mr. Trump. All that is left to check his impulses is the nation’s independent judiciary, which Alexander Hamilton deemed “essential” to our country’s constitutional governance. A country without an independent judiciary is not one in which any of us should want to live, except perhaps Mr. Trump while he resides in the White House.

 

Last week, he tossed more matches into the fire he has long been stoking against the rule of law.

 

On Tuesday, Mr. Trump called for the impeachment of Judge James E. Boasberg, the chief judge of the United States District Court for the District of Columbia, after the judge ordered a pause on the deportation to El Salvador of more than 200 Venezuelan migrants said to be gang members.

 

For good measure, Mr. Trump called the judge a “Radical Left Lunatic of a Judge, a troublemaker and agitator.” All this because Judge Boasberg wanted first to determine whether the administration was correct in invoking the Alien Enemies Act of 1798 to deport the Venezuelan immigrants without a hearing. It’s called due process, which is guaranteed by the Constitution to ensure that no person is deprived of life, liberty or property without due process of law.

 

Within hours, the tectonic plates of the constitutional order shifted beneath Mr. Trump’s feet. The chief justice of the United States, John G. Roberts Jr. — the head of the third branch of government — rebuked the president in a rare missive. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” the chief justice instructed.

 

Unbowed, Mr. Trump laced into Judge Boasberg the next day on his Truth Social platform: “If a President doesn’t have the right to throw murderers, and other criminals, out of our Country because a Radical Left Lunatic Judge wants to assume the role of President, then our Country is in very big trouble, and destined to fail!”

 

No one wants murderers or other criminals to be allowed to stay in this country, but to rid the country of them the president first must follow the Constitution. Judge Boasberg doesn’t want to assume the role of president; the president wants to assume the role of judge.

 

At a hearing on Friday, in a further development in this showdown between the president and the judiciary, Judge Boasberg expressed skepticism about the administration’s use of a wartime statute to deport immigrants without a hearing to challenge whether they were gang members, as the government has asserted. “The policy ramifications of this are incredibly troublesome and problematic and concerning,” he said.

 

He also said he planned to “get to the bottom” of whether the Trump administration had violated his temporary order against the deportations.

 

Mr. Trump seems supremely confident, though deludedly so, that he can win this war against the federal judiciary, just as he was deludedly confident that he could win the war he instigated against America’s democracy after the 2020 election.

 

The very thought of having to submit to his nemesis, the federal judiciary, must be anguishing for Mr. Trump, who only last month proclaimed, “He who saves his Country does not violate any Law.” But the judiciary will never surrender its constitutional role to interpret the Constitution, no matter how often Mr. Trump and his allies call for the impeachment of judges who have ruled against him. As Chief Justice John Marshall explained almost 225 years ago in the seminal case of Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”

 

If Mr. Trump continues to attempt to usurp the authority of the courts, the battle will be joined, and it will be up to the Supreme Court, Congress and the American people to step forward and say: Enough. As the Declaration of Independence said, referring to King George III of Britain, “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”

 

Mr. Trump appears to have forgotten that Americans fought the Revolutionary War to secure their independence from the British monarchy and establish a government of laws, not of men, so that Americans would never again be subject to the whims of a tyrannical king. As Thomas Paine wrote in “Common Sense” in 1776, “in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

 

If the president oversteps his authority in his dispute with Judge Boasberg, the Supreme Court will step in and assert its undisputed constitutional power “to say what the law is.” A rebuke from the nation’s highest court in his wished-for war with the nation’s federal courts could well cripple Mr. Trump’s presidency and tarnish his legacy.

 

And Chief Justice Marshall’s assertion that it is the duty of the courts to say what the law is will be the last word.

 

J. Michael Luttig was appointed by President George H.W. Bush and served on the U.S. Court of Appeals for the Fourth Circuit from 1991 to 2006.